tv Firing Line With Margaret Hoover KQED March 21, 2020 5:30am-6:00am PDT
>> he starred in t two presidential impeachments,on this weefiring line." >> our job is to gather facts and to evaluate those facts and to get at the truth. >> he became a household name investigating the clintons. >> i did not have sexual relations with that woman. >> ken starr brought usto an affaiemember in all its unforgettable detail. >> the president publicly acknowledged an inapopriate relationship. >> during the next presidential impeachment, starr said thereas was no >> i don't think that there's anything close to an impeachable offense re. >> and president trump hired him to join his defense team. >> impeachments hell. >> he argued there is too much impeachment. what does ken starr say now? >> "firing line with margaret hoov is made possible by...
additional funding is provided by...e corpornding is provided by... l ken starr, welcome to "firie." >> thank you, margaret. >> you've been involved in both impeachments in this country's modern history. in the 1990s, you led the probe that investigated bill clinton and ultimately recomnded grounds for impeachment. and then, you were alsoen most ry involved as defense counsel in president trump's impeachment trial. true? >> [ chuckles ] >> te? >> true. >> true? >> i wou quibble a little bit with the description in the clinton impeachment because i was serving independent counsel, so it's such a different role. >> do you think it's fair to say that you were involved in the impeachment, though? >> i was invold in the impeachment, yeah. >> okay. >> you got me. great cross-examination.
>> i want to make sure the introduction to the progm is accurate. how is it yocame to involved as a defense attorney for president trump's impeachment? >> the president called me and asked me to be involved. and then i made it very clear that i could not walk away from my public comments, that i thought that the presidt's phone call was inappropriate and unwise. so i could note taking the positi that the phone call was perfect. but nonetheless, role was a specific role, to talk about the constitutional and historical underpinnings of the impeachment process.ug >> so, i t we'd start actually by first watching a clip from president trump's impeachment trial. let's take a look. >> the senate is being called a to sthe high court impeachment all too frequently. indeed, we are living in what i think can aptly be described
as the age of impeachment. >> what has brought us to be living in an age of impeachment? >> we still live in the shadow of richard nixon. richard nixon's culpability, his long and horble record, as brilliant as he was, then resulted not only nd his resignation, but congress res instead of saying, you know, "the system worked," congre responded by passing, a few years later, the independent counsel law. and the independent counsel law really did usher in the age of impeachment. and it was the independent counsel law under which ronald reagan was threatened. he survived.d en bill clinton was actually impeached. he obviously survivewe buere in the age of impeachment. everybody talks impeachment now a lot. and we didn't used to be that way as a people. it is now, as we've seen, in my judgment,
hll too easy to impe a president of the united states. let's have a debate and let's have elections. >> is that opinion or that position informed by your experience as an independent counsel? >> absolutely. i've lived it now twice. but especially ding the clinton years, when a conversation began but it reay didn't get under way very seriously to censure him. >> there w some discussiont abnsure this time around, as well. >> yes. yes. in fact -- >> would you have viewed that as course of action? outcome or >> well, now i'm gonna say, as someone who's served the president as his attorney... >> right, right. >> ...i'm gonna speak now as -omeone who is simply a citizen and who observes of course. why would we remove a president from office when we' just months away from an election? i realize that became just uetalking point, but it's >> do you think the president called you because he saw you on tv? >> i have no idea. >> here's a clip of you defending the president on television before you were
officially hired. >> does it reach the level of treason, bribery or other high crimes and misdemeanors? my assessment of the evidence thus far, nowhere close. the evidence is conflicting and ambiguous.ha >> afterclip, the president tweeted that he agreed with what id. >> oh. >> "you shouldn't charge, but you cannot convict a sitting president on the basis of cflicting and ambiguous evidence and destabilize the american government. thank u, ken!" [ both laugh ]'s so, after that that he reached out to you. >> well, this was, of course, during the testimony itself. right? so, yes, it definitely was afr that. >> you were personally so tied to the impeachment,ly especiuring the clintons, it sikes some people as odd to hear you lament the age of impeachment now. >> is it that you have more credibility to speato it? [ both laugh ] >> others would be the judge of that. but i was ivileged to serve in the reagan administration,
and we opposed the independent counsel law. we said it's unconstitutional. and one of the reasons was becae, as antonin scalia well put it, in an opinion decrying the independent counsel statute, that this statute, or the context of the statute, is -- anthese are the words of justice scalia -- "acrid with the smell is was a tool, a threat, a gun pointed by congress at the white house. and very unfortunately, presidents, including president clinton, kept reauthorizing the statute when they should've had the gumption and wisdom to say, "we don't need this." the nixon experience teaches us that the tried and true separation of powers and oversight process works. we don't need some independent unsel out running around for years on end, which is what i was. i was an independent counsel operating in this very, very strange world. >> can you explain with the statute il quibble
>> it begins with the word "independent." the prosecutorial func should be part of the executive branch. ultimately, the president's responsibility. and so an investigation of the preside should presumptively be conducted by the justice department, and let the chips fall where they may. now, the justice department may see fit to say, "you know, for this particular investigation, we need to go outside." but what the independent counsel law did was to create the statutory mechanismth , with really a hair trigger, we're going to wepoint these many -- ther many independent counsels running around the countryside, and they were people of integrity. but it was the whole idea of the office and that the office exists among other reasons, yes, to ensure integrity, but also impeach the president.yo >> so, if had so many concerns about the statute and yothought the statute itself was unconstitutional,
why did you accept the job? >> because the supreme court held it to be constitutional,vi so ms were not accepted by the supreme court. that's point one. point two, i was asked to do it. and point three is, i knew at we could build in mechanisms of checks and balances within the office so that it was not the decision of one person in the exercise of his or her unftered discretion making these judgments. and i brought in an outside ethics counsel who was a veteran of watergate himself,le thndary sam dash. >> ultimately, that outside ethics counsel resigned the day after you testified in front of the house of representatives. >> yes, he did.t >> wd you make of that? i mean, i read -- i read that part of your book very closely. >> i was really befuddled, perplexed, i was disappointed. and i gathered the roundable, so to speak, the next day of our colleagues, i said, "did actually become..." which was the gravamen of the late sam dash's
complaint, "...an advocate for impeachment during the course of my testimony for the house judiciary committee?" the irony is, sam dash had approved of our referral or report, the controversial report to congress, the salacious report. he had approved of i but he said -- and i can't judge that, and i never had a conversation with him -- that during the course of my testimony, i became an advocate for impeachment as opposed to simply the independent counse presenting the evidence. and so did all of my colleagues. >> but you never spoke to him about it? >> no, and i should have. t he handled it the way he handled it, which was to issue a letr publicly, and i was not pleased with that. but bygones be bygones. and i'm not gonna speak ill of sam dash. he was a great man.>> o, president clinton's impeachment was because he lied
under oath abo his affair with monica lewinsky.co ect? >> and obstructed justice. >> let me ask you out a critique -- and i'm sure you've read this article. lawrce walsh,wa whthe independent counsel during the iran-contra affair. he wrote in a article in 1998 about your investigation at your activity was not consistent with that of a professional prosecut, generally because prosecutors avoided perjury prosecutions. what is your respo >> i respectfully disagree. >> of course you do. >> but my response is, gathered together a really all-star cast prosecutors from around the country, including e justice department. now, judge walsh that's his view.ely wrong. lawyers sometimes have different views. but the perjury casepo was just srful, and there it was essentially accepted by thoughtful people that, yes, the president did commit perjury.
but does that -- then we come back to impeachment. does that warrant, given the nature and the context, his removal from office? and obviously the senate determined, no, it does t. >> all right. so let's go back to 1994, actually, because you are madeth the head ooffice of independent counsel primarily to investigate whitewater, which was an investigationof ill and hillary clinton and several of their associates from arkansas invoed in real-estate deals. >> right. >> and you wrote in your book,on mpt," that you "sensed that investigating clinton, r new youthful president was likely not going to be a career-enhancing move. >> [ laughs ] >> was your instinct, right? >> oh, very much so. i look back on it, and i still would have taken the job., obviou would have had of experience to bo bear and one of things that i've said is that i wish that there had been another independent counsel to take on the monica lewinsky matr. i mean, that's my big takeaway,
because i was ready to,o to pepperdine universi become the dean of the law school and the founding dean of the school of public policy. so here we are, back to the independent counsels -- you give them one thing, but then other things come to their attention.d at are they to do? >> you write in your book that clinton survived whitewater, though he had testified untruthfully time and time again. >> yes. >> was it just that the evidence was never sufficient for an indictment? >> it wasn't that we didn't have plenty of evidence. we did not have admissible evidence or credible evidence. tw prosecutors frequently note the distinction n what they know and what they can prove. and it's a great protectionam foican liberty that you've got -- the ethical prosecutor has to make a judgment -- hopefully it's a collaborative judgment -- with professionals around him or her, that say, "we can prove this case beyond a reasonable doubt before a fair-minded jury." that's the standard, and it's a tough standardo meet. now, we just didn't read it with either president clinton or hillary clinton, but we both --o
community, i'll just speak for myself. others can speak for themselves. weelieve that they were untruthful in connection with those investigations. >> dyou believe that there we crimes they committed that they got away with? >> yes. >> what crimes do you think that he committed that got away with? >> i'm not gonna get into what the specific offenses were. you know, 's a matter of history now. so let's just let history be the judge of th. >> you just said that you thought that the monica affair ought to have been a separate,de ndent counsel. >> yes. >> you went to attorney general reno when this part of it came to light and asked rtat your probe be expanded to include this f it. what would have it taken for it to have become a separate office at that pot? >> as a practical matter, the attorney general would have needed someone right then and i there, wready to go with a staff who could begin the process ofnvestigating what was under way. so there were rapidly -- >> so there was really no wayt thatuld've become a separate investigation? >> no. >> the coming to light of thetu ion with monica
got you this green light to initiate an operationom known as "ight," which was when lewinsky was ought to a hotel room in pentagon city mall in order to be questionedim and offerenity. i'd like to take a look at what monica has said about that moment now in hindsight.be >> i remlooking out the window and thinking that the only way to fix this was to kill myself, was to jump out the window. and, um... i -- i just -- i felt terrible. i was scared and i just... i was mortified and afraid of what this was gonna do to my family, and... you know, i still was in love with bill at the time. um... so i just -- i felt really responsible. >> had you seen that before?
>> no, i had not. >> so, in your book, you wrote that you deeply regret that you took on the lewinsky phase of the investigation, but at the same time, 20 years later, you didn't see that there was any practical alternativeo. to doing explain at. >>ell, we just chatted about there was no one else in the wingshat janet reno could have reached out to. so as a practical matter it was us. but it was her judgment. we rommended that we take it on, so the -- but the buck really does stop with janet reno. i recommended , but she had the choice of saying, "it shouldn't be investigated at ghl." but she did the thing. she knew that it had to be investigated. as sad andragic from a human perspective as this was and monica's distress -- i mean, her -- her anguish, considering taking her own life, i mean, this is a human tragedy, an absolute human tr unfortunately, the criminal laws we have -- because what was she seeking to do? she was trying to encourage
someone to commit perjury, and she had committed perjury herself.so t was a human tragedy that end up having these very sad legal implicions for the criminal law. >> in the intervening year the #metoo movement has come to really ed a light on the power imbalances between and relationships in the workplace. how do you think this would have ebeen understood had it c to light after the #metoo era? >> i think we've seen such a culture shift that even though that -- and i want to be absoluty clear about this -- this relationship was consensual. and i've never suggested in any comment i any report otherwise. but i think we nonetheless view the human interaction through a different ns now. and so i think it would be -- i think would be vieweit differently. >> there is a new documentary out on hulu, called "hillary," where bill clinton actually reflects
on what led him to have that affair with monica lewinsky. take a look at how he describes his actions. >> everydy's life has essures and disappointments and terrors, fears of whatever. things i did to manage my anxiety for years. i'm a different -- totally with a lot of that stuff, you know, 20 years ago.na >> his expon there for why he had an affair with monica lewinsky was that he was managinhis anxiety. >> right. m not going to judge that. i just don't judge people's motives and... i look, an incredibly winsome, attractive guy, and he is able to articulate visions of his own conduct. he is just a gre communicator.
>> looking back on it, is there anything you would do differently? >> well,bove all, it would have been assigned to someone else. if i could rewind, i would have been more persuasive in saying to the house judiciary committee, "i do not need to testify." the testimony was essentially limitedda to mlong testimony. again, we talked at gave -- sam dash -- the impression that i'm pushing for impeachment. i've heard that nce taking on the role for psident trump. "wait. you were pushing for impeachment. now you're defending the presidt." and i've been pretty darn consistent. let's get out of the business of impeaching the president of the ited states, except un the, truly, a last-resort kind of set of circumstances. and what's the last resort? the last resort ll indicate that, given all the facts, the totality of the facts, that there will, in fact, be bipartisan support.
410 members of the house of representatives voted in favor of the nixonim achment inquiry. it was virtually unanimous. four votes against it. so they just said the nation needs to take a very carefulat look at resent nixon did. >> but what strikes me, also, is that, in the intervening years since the nixon impeachment, congress has become, in many ways, less of an independent branch and less of a check on the executive branch. it is just less likely that you get democrats who se with republicans and republicans who side with democrats. you see more and more, increasingly since 1973, 1974, party-line votes with nobody going to the other side. the moderate democrats and theub moderate repcans are gone. >> well, my -- >> couldn't that be part of this? d it may be part of it. that's a very brrspective on what's happened to the entire politics of the country. but remember that at least in the president clinton situation, 31 democrats voted in
favor of the impeachment iniry, whereas here, with president trump, ro republicans did. mnd only, of course, mitt voted in favor of -- in favor of one of the two articles. >> you talk a lot about how the clinton white house was too close with the department of justice, that the relationshi was often improper. and they were, for example, coordinatinghe responses, the department of justice, the white house during the clinton impeachment hearing and during the time you were running the office of the independent counl.do ou have similar concerns about the coordination between the trump white house and its partment of justice? >> yeah, i haven't come to view on that. but what i do -- >> why? >> i haven't seen all the facts. >> there's a debate about the relationship between the attorney general and the present -- attorney general william barr, specifically, and the president -- and whether he is exercising the proper degree of independence as he leads
the justice department. and ere is a judge reggie b. walton, who about inconsistencdum between the mueller report and how barr characterized it in his summary that he sent to congss. he said that the report... >> i honestly, margaret, cannot comment at all. i haven't read reggie walton's, judge walton's report, and i've certainly not read the redacted portions. i did t thk -- and as of this time, i did not -- i do not think that what attorney general barr said in that initial press conference was in any way misleading. but you can easily say, "oh, well, you should've said thisnd that, because it's a 400-page report. this was a judgment call by the
attorney general. >> it was a judgment call, but it wn't just what he said in the presconference. it was what he wrote in the letter and whether the summary letter that he sent to congress wafairly characterized whain the report. >> i think at the time i felt that it was that iwas fair. you can always criticize the letter as not being as complete as it should. >> what does thamean that a bush-appointed federal judge has come out and said that he believes the attorney geral was not fairly characterizing the report? >> well, it's something that has to be taken seriously.u i' not prered to comment on it because i've not read judge walton's order, i haven't seen the redacovisions -- parts of the report. >> it's unusual no? -- for a deral judge -- >> oh, of course it is. >> and what does that do to attorney general barr's tenure at the head of the justice department? >> being the attorney genel is incredibly difficult. including at times from judges. i think, in many respects, h it's tdest job outside of being the president
of the united states in governme, because at every turn, you're going to be absolutely savaged -- not just criticized, savaged -- very difficult judgment calls that you make. and so'm very empathetic. full disclosure -- i served witbill barr, and i served under bill barr. .nd i know him to be a person of total integri >> the most fun part of the show is that william f. buckley jr. hosted the original "firing line." and in 1992, you were on the original "firing line." you were discussing torts and reforms, and i'd like you to take a look at what you said then.ov >> let'sto another one of your proposals, namely the the capiv on pundamages. >> our proposal is to recommend to the states that the states, through their legislative, bodinsider imposing a cap. a number have, by the way. some have actually abolished punive damages. they're saying that the efficacy
of punitive damages is reallyit limited. and yet the unpredictability is so highse that ies as a wild card. punitive damages claims are almost always asserted. they're seldom achieved, by the way, so the jury system very frequeny does work. but again, it has the wild-card effect, because when you do t a punitive damages award, it tends to be astronomically high. >> do you still think the same way about punitive damages as you did in 1992? >> absolutely not. >> why? why has your thinking changed? >> punitive damages are actualli a veortant part of our system. there's a lot of terrible stuff that goes on in the world, and the law of torts -- fancy word, or french word forng "w -- developed this mechanism, and the mechanism makes complete sense. to deteromeone from doing that again, we're not gonna send them to jail, but we'rg to say, "here, you're going to pay an additional sum of money
to the victim." but i was also, at that time, the solicitor general of the united states, and i was an adcate. i was an advocate for a reform package that we were pursuingr unesident bush 41. >> in your private practice, you have wound up, also, in a position where you sued for punitive d >> absolutely. but i do think seriously that there is an important role for punitive damages to play in our system of righting wrongs.to like any goo, it can be misused or it can be carried away. but there are mechanisms to ensure that it's used properly as a tool. >> so, were those litigations that you're a part of, the wisdom and experience that led to you changing your mind or did you chan your mind before? >> oh, no. i've been much more, shall i say, broad-minded as a lawyer in private practice, as a judge, that punitiveer